MISSISSIPPI LEGISLATURE
2010 Regular Session
To: Judiciary A
By: Representative Blackmon
AN ACT TO AMEND SECTION 75-24-25, MISSISSIPPI CODE OF 1972, TO DEFINE CERTAIN TERMS RELATING TO PRICE GOUGING DURING A STATE OF EMERGENCY; TO REVISE PENALTIES FOR PRICE GOUGING WHILE A DECLARATION OF A STATE OF EMERGENCY IS IN FORCE; TO AMEND SECTION 33-15-11, MISSISSIPPI CODE OF 1972, TO CONFORM AND TO PROVIDE THAT THE SECRETARY OF STATE SHALL PROVIDE ACTUAL NOTICE TO REGISTERED AGENTS OF THE PROCLAMATION OF A STATE OF EMERGENCY; TO CREATE SECTION 75-73-19, MISSISSIPPI CODE OF 1972, TO PROVIDE CIVIL IMMUNITY FOR THE CANCELLATION OF LODGING RESERVATIONS DURING A DECLARED STATE OF EMERGENCY; AND FOR RELATED PURPOSES.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF MISSISSIPPI:
SECTION 1. Section 75-24-25, Mississippi Code of 1972, is amended as follows:
75-24-25. (1) For the purposes of this section, the following terms shall have the meanings herein ascribed:
(a) "Person" means a natural person, corporation, trust, partnership, incorporated or unincorporated association, or any other legal entity.
(b) "State of emergency" has the meaning ascribed in Section 33-15-5.
(c) "Local emergency" has the meaning ascribed in Section 33-15-5.
(d) "Emergency impact area" has the meaning ascribed in Section 33-15-5.
(e) "Value received" means the consideration or payment given for the purchase of goods and services.
(f) "Declaration of emergency" or "declaration" means a proclamation by the Governor of a state of emergency under the authority of Section 33-15-11.
(g) "Commodity" means goods, services, materials, merchandise, supplies, equipment, resources or other articles of commerce and includes, but is not limited to, food, water, ice, chemicals, petroleum products and lumber.
(h) "Dwelling" means a dwelling unit, including, but not limited to, a motel or hotel unit, other temporary lodging or self-storage facility, and residential leases or real property.
(i) "Allowable average price" means the average price at which a commodity or dwelling was rented or sold or offered for sale or rent in the usual course of business by a particular person at the same individual business or facility during the thirty (30) days immediately before the date of proclamation of the emergency impact area. Persons who are not offering commodities or dwellings for sale or rent during the entire thirty-day period prior to the date of the issuance of the proclamation of the emergency impact area are required to sell or rent said commodities or dwelling at a price comparable to the prices charged by sellers or renters for those commodities or dwellings in the geographic area covered by the proclamation on the date that is thirty (30) days immediately prior to the date the proclamation is issued.
(j) "Unconscionable price increase" means a price in excess of one hundred five percent (105%) of the allowable average price, plus one hundred percent (100%) of the average allowable increased cost as to a particular commodity or dwelling sold or rented or offered for sale or rent by a particular business or facility.
(k) "Allowable increased cost" means the increase in the total of the costs and expenses necessarily incurred by a person at an individual business or facility with regard to the acquisition, production, distribution, sale or rent of a commodity or dwelling, including, but not limited to, increased costs and expenses of goods, inventory, labor, maintenance, taxes, financing, transportation, that are necessarily incurred during the duration of a valid declaration of emergency impact area and any renewal thereof as opposed to those same costs and expenses incurred during the thirty (30) days immediately before the date the declaration was promulgated.
(2) (a) Whenever, under the Mississippi Emergency Management Law, Sections 33-15-1 through 33-15-49, an emergency impact area is declared by the Governor to exist in this state, or whenever notice of an abnormal disruption of the market is issued under this section by the Attorney General, it is unlawful for a person or the person's agent or employee to rent or sell or offer to rent or sell a commodity or dwelling at an unconscionable price within the emergency impact area as set forth in a valid declaration.
(b) The determination of unconscionable price shall be made on a case-by-case basis concerning an individual business or facility and shall not be controlled by the consideration of the practices and prices of multiple businesses or facilities or by determining prices or practices within an entire market area. It is prima facie evidence that a price is an unconscionable price if it falls within the definition of unconscionable price.
(3) Any person who knowingly and willfully violates subsection (2)(a) of this section, when the total value received during a twenty-four-hour period is more than Five Hundred Dollars ($500.00) or more, shall be guilty of a felony and, upon conviction, shall be punished by confinement for a term of not less than one (1) year * * * or a fine of not more than Five Thousand Dollars ($5,000.00), or both.
(4) Any person who knowingly and willfully violates subsection (2)(a) of this section, when the total value received during a twenty-four-hour period is less than Five Hundred Dollars ($500.00), shall be guilty of a misdemeanor and upon conviction shall be fined not more than One Thousand Dollars ($1,000.00) or by imprisonment in the county jail for a term not to exceed six (6) months, or both.
(5) For the purpose of determining the punishment to be imposed under subsections (3) and (4) of this section, the value received during a twenty-four-hour period shall be aggregated.
(6) In addition to the criminal penalties prescribed in subsection (3) * * *, any knowing and willful violation of subsection (2) of this section shall be considered an unfair or deceptive trade practice subject to and governed by all the procedures and remedies available under the provisions of this chapter for enforcement of prohibited acts and practices contained therein.
(7) Notwithstanding any other provision of this section:
(a) No person shall be required to sell or rent or offer for sale or rent, a commodity or dwelling at a loss during the time a declaration of emergency impact area or renewal thereof is in force and effect in order to avoid a violation of or to comply with any of the provisions of this section.
(b) No person shall be required to sell or rent or offer for sale or rent a dwelling that is subject to a contractually set price for less than the contracted price during the time a declaration of emergency impact area or renewal thereof is in force and effect if the contract was negotiated before the declaration.
(8) A trade association, corporation or partnership may register as an agent with the Secretary of State's office for the purpose of being notified when the Governor declares a state of emergency or local emergency under the Mississippi Emergency Management Law, Sections 33-15-1 through 33-15-59. A trade association may designate up to three (3) persons to be notified on behalf of the organization's members. The trade association, corporation or partnership is responsible for maintaining current information for the designated agents. The Governor's Office shall notify the Attorney General's office and registered agents simultaneous to declaring, retracting or renewing a state of emergency or local emergency. Failure to register or lack of actual notice is not a defense to any enforcement action brought under this section.
SECTION 2. Section 33-15-11, Mississippi Code of 1972, is amended as follows:
33-15-11. (a) The Governor shall have general direction and control of the activities of the Emergency Management Agency and Council and shall be responsible for the carrying out of the provisions of this article, and in the event of a man-made, technological or natural disaster or emergency beyond local control, may assume direct operational control over all or any part of the emergency management functions within this state.
(b) In performing his duties under this article, the Governor is further authorized and empowered:
(1) To make, amend and rescind the necessary orders, rules and regulations to carry out the provisions of this article with due consideration of the plans of the federal government, and to enter into disaster assistance grants and agreements with the federal government under the terms as may be required by federal law.
(2) To work with the Mississippi Emergency Management Agency in preparing a comprehensive plan and program for the emergency management of this state, such plan and program to be integrated into and coordinated with the emergency management plans of the federal government and of other states to the fullest possible extent, and to coordinate the preparation of plans and programs for emergency management by the political subdivisions of this state, such local plans to be integrated into and coordinated with the emergency management plan and program of this state to the fullest possible extent.
(3) In accordance with such plan and program for emergency management of this state, to ascertain the requirements of the state or the political subdivisions thereof for food or clothing or other necessities of life in the event of attack or natural or man-made or technological disasters and to plan for and procure supplies, medicines, materials and equipment, and to use and employ from time to time any of the property, services and resources within the state, for the purposes set forth in this article; to make surveys of the industries, resources and facilities within the state as are necessary to carry out the purposes of this article; to institute training programs and public information programs, and to take all other preparatory steps, including the partial or full mobilization of emergency management organizations in advance of actual disaster, to insure the furnishing of adequately trained and equipped forces of emergency management personnel in time of need.
(4) To cooperate with the President and the heads of the Armed Forces, and the Emergency Management Agency of the United States, and with the officers and agencies of other states in matters pertaining to the emergency management of the state and nation and the incidents thereof; and in connection therewith, to take any measures which he may deem proper to carry into effect any request of the President and the appropriate federal officers and agencies, for any action looking to emergency management, including the direction or control of (a) blackouts and practice blackouts, air raid drills, mobilization of emergency management forces, and other tests and exercises, (b) warnings and signals for drills or attacks and the mechanical devices to be used in connection therewith, (c) the effective screening or extinguishing of all lights and lighting devices and appliances, (d) shutting off water mains, gas mains, electric power connections and the suspension of all other utility services, (e) the conduct of civilians and the movement and cessation of movement of pedestrians and vehicular traffic during, prior and subsequent to drills or attack, (f) public meetings or gatherings under emergency conditions, and (g) the evacuation and reception of the civilian population.
(5) To take such action and give such directions to state and local law enforcement officers and agencies as may be reasonable and necessary for the purpose of securing compliance with the provisions of this article and with the orders, rules and regulations made pursuant thereto.
(6) To employ such measures and give such directions to the state or local boards of health as may be reasonably necessary for the purpose of securing compliance with the provisions of this article or with the findings or recommendations of such boards of health by reason of conditions arising from enemy attack or the threat of enemy attack or natural, man-made or technological disaster.
(7) To utilize the services and facilities of existing officers and agencies of the state and of the political subdivisions thereof; and all such officers and agencies shall cooperate with and extend their services and facilities to the Governor as he may request.
(8) To establish agencies and offices and to appoint executive, technical, clerical and other personnel as may be necessary to carry out the provisions of this article including, with due consideration to the recommendation of the local authorities, part-time or full-time state and regional area directors.
(9) To delegate any authority vested in him under this article, and to provide for the subdelegation of any such authority.
(10) On behalf of this state to enter into reciprocal aid agreements or compacts with other states and the federal government, either on a statewide basis or local political subdivision basis or with a neighboring state or province of a foreign country. Such mutual aid arrangements shall be limited to the furnishings or exchange of food, clothing, medicine and other supplies; engineering services; emergency housing; police services; national or state guards while under the control of the state; health, medical and related services; fire fighting, rescue, transportation and construction services and equipment; personnel necessary to provide or conduct these services; and such other supplies, equipment, facilities, personnel and services as may be needed; the reimbursement of costs and expenses for equipment, supplies, personnel and similar items for mobile support units, fire fighting and police units and health units; and on such terms and conditions as are deemed necessary.
(11) To sponsor and develop mutual aid plans and agreements between the political subdivisions of the state, similar to the mutual aid arrangements with other states referred to above.
(12) To collect information and data for assessment of vulnerabilities and capabilities within the borders of Mississippi as it pertains to the nation and state's security and homeland defense. This information shall be exempt from the Mississippi Public Records Act, Section 25-61-1 et seq.
(13) Authorize any agency or arm of the state to create a special emergency management revolving fund, accept donations, contributions, fees, grants, including federal funds, as may be necessary for such agency or arm of the state to administer its functions of this article as set forth in the Executive Order of the Governor.
(14) To authorize the Commissioner of Public Safety to select, train, organize and equip a ready reserve of auxiliary highway patrolmen.
(15) To suspend or limit the sale, dispensing or transportation of alcoholic beverages, firearms, explosives and combustibles.
(16) To control, restrict and regulate by rationing, freezing, use of quotas, prohibitions on shipments, price fixing, allocation or other means, the use, sale or distribution of food, feed, fuel, clothing and other commodities, materials, goods or services.
(17) To proclaim a state of emergency in an area affected or likely to be affected thereby when he finds that the conditions described in Section 33-15-5(g) exist, or when he is requested to do so by the mayor of a municipality or by the president of the board of supervisors of a county, or when he finds that a local authority is unable to cope with the emergency. Such proclamation shall be in writing and shall take effect immediately upon its execution by the Governor. As soon thereafter as possible, such proclamation shall be filed with the Secretary of State and be given widespread notice and publicity. The Governor, upon advice of the director, shall review the need for continuing the state of emergency at least every thirty (30) days until the emergency is terminated and shall proclaim a reduction of area or the termination of the state of emergency at the earliest possible date that conditions warrant.
(18) To declare an emergency impact area when he finds that the conditions described in Section 33-15-5(o) exist. The proclamation shall be in writing and shall take effect immediately upon its execution by the Governor. As soon as possible, the proclamation shall be filed with the Secretary of State and be given widespread notice and publicity. The Governor shall review the need for continuing the declaration of emergency impact area at least every thirty (30) days until the emergency is terminated, and shall proclaim the reduction of the emergency impact area or termination of the declaration of emergency impact area at the earliest date or dates possible. A declaration of emergency impact area shall terminate thirty-one (31) days after its promulgation unless sooner renewed as provided in this paragraph.
(c) In addition to the powers conferred upon the Governor in this section, the Legislature hereby expressly delegates to the Governor the following powers and duties in the event of an impending enemy attack, an enemy attack, or a man-made, technological or natural disaster where such disaster is beyond local control:
(1) To suspend the provisions of any regulatory statute prescribing the procedures for conduct of state business, or the orders, rules or regulations of any state agency, if strict compliance with the provisions of any statute, order, rule or regulation would in any way prevent, hinder or delay necessary action in coping with a disaster or emergency.
(2) To transfer the direction, personnel or functions of state agencies, boards, commissions or units thereof for the purpose of performing or facilitating disaster or emergency services.
(3) To commandeer or utilize any private property if necessary to cope with a disaster or emergency, provided that such private property so commandeered or utilized shall be paid for under terms and conditions agreed upon by the participating parties. The owner of said property shall immediately be given a receipt for the said private property and said receipt shall serve as a valid claim against the Treasury of the State of Mississippi for the agreed upon market value of said property.
(4) To perform and exercise such other functions, powers and duties as may be necessary to promote and secure the safety and protection of the civilian population in coping with a disaster or emergency.
(d) Every declaration of emergency or renewal of declaration of emergency promulgated by the Governor under the provisions of this article shall describe the emergency impact area to which the declaration or renewal of declaration is applicable.
(e) Any person may register with the Secretary of State's office an agent for service of declaration for purposes of notification that the Governor has declared, renewed or terminated any state of emergency or emergency impact area. A person may designate not more than three (3) agents to be notified. Each person electing to designate an agent or agents for this purpose is responsible for maintaining current information on the agent or agents with the Secretary of State's office. As soon as possible after the filing of any declaration, renewal of declaration, or termination of declaration with the Secretary of State, the Secretary of State shall issue actual notice to the last address provided by each registered agent and shall otherwise give widespread notice and publicity of the declaration, renewal of declaration or termination of declaration. All notices provided by the Secretary of State under this subsection shall include the description of the state of emergency or emergency impact area covered by the declaration, renewal of declaration or termination of declaration.
SECTION 3. The following shall be codified as Section 75-73-19, Mississippi Code of 1972:
75-73-19. Any inn, hotel, motel, other temporary lodging unit, innkeeper, hotel keeper, motel keeper, keeper of any other temporary lodging unit, or manager of an inn, hotel, motel or other temporary lodging unit shall be immune from civil liability for the cancellation of any reservation if the cancellation is made in order to house displaced victims during the existence of a valid declaration of emergency or renewal thereof.
SECTION 4. This act shall take effect and be in force from and after July 1, 2010.